Monday, July 4, 2022

Berlau on the Declaration of Independence and the Administrative State

Over at Law & Liberty (here), John Berlau has posted a comment on Jarkesy v. SEC, in which the Fifth Circuit recently ruled that "(1) the SEC's in-house adjudication of Petitioners' case violated their Seventh Amendment right to a jury trial; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the delegated power, in violation of Article I's vesting of 'all' legislative power in Congress; and (3) statutory removal restrictions on SEC ALJs violate the Take Care Clause of Article II." Jarkesy v. Sec. & Exch. Comm'n, 34 F.4th 446, 449 (5th Cir. 2022). What follows is a brief excerpt from Berlau's post, but please go read the whole thing.

Critics and proponents of the ruling by the U.S. Court of Appeals for the Fifth Circuit in Jarkesy v. SEC have called revolutionary the new limits it places on federal regulatory agencies’ use of administrative law judges, a core tool of the administrative state…. Jarkesy is indeed revolutionary—both in the jurisprudence it could usher in limiting the power of the administrative state and in its concern for issues involved in the American Revolution. The ruling “has taken what could be a historic step toward restoring the Constitution’s checks and balances,” predicts Mario Loyola, professor at Florida International University and … [a] senior fellow at the Competitive Enterprise Institute (CEI), writing for the Wall Street Journal.

These checks and balances—including the right to a jury trial for common law offenses and a separation of powers of the different branches of government—came about due to the abuses the Founding generation suffered at the hands of Great Britain. Documents of the Founding era from the writings of George Washington to the Declaration of Independence itself list as grievances the quasi-courts created by the British to prosecute tax and trade offenses. These courts, which bypassed jury trials and due process for the colonists, and were under the rhetorical thumb of the British officials prosecuting the alleged offenses, bear a striking resemblance to the administrative venues run by regulatory agencies today.

Stefan J. Padfield | Permalink


If only Congress would thoughtfully legislate instead of leaving vacuums for state legislators to fill, often reluctantly, imperfectly and without uniformity. Too often we need the administrative state to regulate on a national basis for want of responsible federal legislation.

Posted by: Craig Sparks | Jul 5, 2022 10:03:45 AM

Craig Sparks: Ditto. Of course, if legislators legislate they subject themselves to facing the body politic for those legislative choices. Legislators figured that out a long time ago and use the administrative state as "cover."

Posted by: Tom N. | Jul 6, 2022 2:31:14 PM

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